FMW18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1990

1. The applicant seeks judicial review of a decision made by the Immigration Assessment Authority (IAA) (as it was). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).
2. For the following reasons, the application before the Court must be dismissed.

1. The applicant is a national of Bangladesh who applied for a protection visa on 9 September 2016.
2. On 25 January 2018, the Delegate refused the application. The matter was subsequently referred to the IAA for review.
3. On 28 September 2018, the IAA affirmed the Delegate's decision.

1. The IAA observed that the audio provided regarding the applicant's interview with the Department ceased after a break that had been proposed by the Delegate during the interview. The IAA observed that it had written to the applicant advising (inter alia) that he could make submissions regarding any claim or matter overlooked in the Delegate's decision. None was raised in submissions that were subsequently provided. The IAA concluded that the claims and evidence provided to the Department were substantially before it (at [3]).
2. The IAA observed that reference to a 2 February 2018 DFAT report was made in the applicant's submissions, which was new information. The IAA found that the requirements for its consideration under s 473DD of the Migration Act 1958 (Cth) (Act) were met (at [4]).
3. The IAA accepted that:

(a) the applicant was a national of Bangladesh (at [8]);

(b) the applicant would be returning to Bangladesh as a failed asylum seeker (at [21]); and

(c) the applicant departed Bangladesh illegally with the aid of a smuggler (at [21]).

(a) the applicant was attacked or threatened by anyone associated with the Awami League (at [20]);

(b) the applicant owned a clothing store that was burned down (at [20]);

(c) the applicant ever made complaints or demanded compensation in any such regard (at [20]);

(d) the applicant or his family were ever involved in, supported, or were associated with Jamaat or any other political group (at [20]);

(e) the applicant would face a real chance of harm returning to Bangladesh as a failed asylum seeker, or due to his departure from Bangladesh without a passport with the assistance of a smuggler (at [21]);

(f) the applicant would face a real chance of harm as a consequence of general violence or abuse in Bangladesh (at [22]); or

(g) the applicant would face a real chance of suffering harm of any kind if he were to return to Bangladesh (at [22] and [26]).

1. Based upon the above, the IAA concluded that the applicant was unable to meet the criteria for the grant of the protection visa (at [23]-[27]). Accordingly, the IAA affirmed the Delegate's decision.

1. The applicant sought judicial review of the IAA's decision through an application filed on 19 October 2018. The matter remained in the central migration docket for some time and was previously docketed to another judge before being allocated to my docket more recently and listed for hearing. The following grounds were stated in the application:

I believe the IAA Decision is affected with legal error. The decision maker was unreasonable and there were problems with the interpreter.

1. In DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177 (DVO16), Kiefel CJ, Gageler J (as his Honour then was), Gordon and Steward JJ considered at [19]-[23] two potential situations in which translation errors in a recording of an interview provided to the IAA could result in relevant error within the context of the particular statutory scheme under consideration:
   1. How then, if at all, might translation errors in a recording of a protection interview provided to the Authority by the Secretary as part of the review material result in non-compliance with any condition of a decision of the Authority expressed in or implied into Pt 7AA? Two potentialities present themselves, but only two.
   2. The first arises from the condition of reasonableness implied into the procedural duty of the Authority to review the referred decision by considering the review material and implied as well into the procedural powers of the Authority to get new information at an interview with the referred applicant and then to consider that new information if the Authority is satisfied that specified conditions are met42...
   3. Whether or not the decision of the Authority was reached in breach of the reasonableness condition implied into its procedural duty and powers would turn, on either analysis, on whether the decision-making course in fact adopted by the Authority in the circumstances known to it45 was open to a reasonable member of the Authority cognisant of the statutory obligation of the Authority ordinarily to conduct its reviews without accepting or requesting new information or interviewing the referred applicant, cognisant of its powers to get new information in an interview with the referred applicant and to consider that information, and mindful of the statutory exhortation to the Authority to pursue the objective of providing a mechanism of limited review that is both "efficient" and "quick"46.
   4. The second way in which translation errors in a recording of a protection interview provided to the Authority by the Secretary as part of the review material could result in non-compliance with Pt 7AA is through non-compliance with the overriding duty of the Authority to "review" the referred decision47. That overriding duty of the Authority is to engage in a de novo assessment of the merits of the decision in fact made by the delegate: "to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met"48. The Authority's de novo assessment of the merits is not of a lesser standard than that required of the delegate in making the referred decision. No less than the delegate in making the referred decision, the Authority in reviewing the referred decision is required to assess the claims to protection in fact raised by the referred applicant against the criteria for the grant of a protection visa in order to determine whether or not to be satisfied that those criteria have been met.
   5. Just as mistranslation of words spoken during a protection interview has the potential to result in the delegate failing to understand and therefore to consider the substance of a claim in fact raised by the applicant in his or her own language, so the same mistranslation has the potential to result in the Authority failing to understand and therefore to consider the substance of the same claim. Mistranslation in that way has the potential to result in the Authority failing to discharge the core element of its overriding duty, namely to assess the claims to protection in fact made by the applicant against the criteria for the grant of the visa in determining for itself whether or not it is satisfied that the criteria for the grant of a visa have been met.
2. The effect of the above case was discussed with the applicant at hearing. It was also observed that there was no evidence before the Court capable of demonstrating interpretation error, let alone error of a type that might provide a basis for setting aside the IAA's decision.
3. I sought to explore with the applicant what interpretation errors he considered had occurred. The applicant took issue with the standard of interpretation at both his entry interview and his protection visa interview. In relation to the entry interview, the applicant expressed that the interpreter "was Rohingya" and expressed that he "did not understand him fully". However, the applicant did not explain in detail what it was that was misunderstood (although he sought to link this to discrepancies in his account). I observed that submissions in this regard had been made by his representative to the IAA. The IAA had not accepted the applicant's explanation, with the IAA considering that it appeared from the audio recording that "the Bengali interpreter assigned to the entry interview interpreter understood each other, and there is no indication that the applicant was ever misinterpreted" (at [19]).
4. The applicant also took issue with the standard of interpretation at the protection visa interview. When I sought to explore further with the applicant what he believed had been misinterpreted, he expressed that it had been "a long time now" and stated that he would "have to listen to the recording". I observed that in order to find relevant error on the part of the IAA, I would need to understand (a) what it was contended was misinterpreted; and also (b) the effect upon the IAA's decision. In order to find that interpretation error(s) had occurred, I would need evidence of what was said in each language during the interview in question. This would preferably be through an affidavit by an accredited interpreter.
5. The Minister, quite reasonably, did not oppose the applicant being given an opportunity after the hearing to consider the recordings and provide further evidence and submissions if he chose to do so. This was in circumstances where the applicant's ground raised issues with interpretation, but it appeared that the applicant did not have the recording of at least one of the interviews in question and may not have understood before the hearing that he could seek this or the type of evidence that he would need to provide in support of his case. Orders were accordingly made requiring the audio recordings of the interviews to be provided to the applicant and permitting the applicant further time in which to file evidence and submissions.
6. No further evidence was provided by the applicant demonstrating exactly what was said at the interviews. In submissions filed after the hearing, the applicant reiterated in general terms that he did not understand the interpreter at the 2013 interview "clearly". However, without clear evidence of what was misunderstood, or the effect of this upon the IAA's decision, this does not provide the Court with a basis for setting aside the IAA's decision. The applicant submitted that his birth year had been mistranslated in the 2013 recording. Even if this occurred, it is not apparent to me how that error could be said to have been of such consequence that it justifies the setting aside of the IAA's decision.
7. I acknowledge, as did the IAA, that part of the recording of the applicant's protection visa interview appears to be unavailable. However, as the Minister submitted, there is authority to the effect that the non-availability of a recording is not, of itself, sufficient to demonstrate a basis for setting aside the IAA's decision: EMS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 174; (2020) 280 FCR 381 at [51] (Murphy J and Mortimer J, as her Honour then was). In the present case, the IAA recognised the issue. It observed that the applicant had been informed that he could provide a submission addressing (inter alia) any claim or matter presented to the Department that had not been considered. Although submissions had been provided on the applicant's behalf, no such material had been identified. The IAA therefore considered that the claims and evidence before the Delegate were substantively before it.
8. Within this context, I do not see how the IAA's approach could be said to be legally unreasonable. It has not been demonstrated on the evidence that translation errors meant that the IAA failed to consider the substance of the applicant's claims. I am therefore not persuaded that it has been demonstrated that the standard of interpretation in this case provides a basis for setting aside the IAA's decision.

1. Legal unreasonableness may be found where a decision is irrational, lacking in "an evident and intelligible justification", or is plainly unjust, arbitrary, capricious or lacking in common-sense: see for example Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [10] per Kiefel CJ and [82] per Nettle and Gordon JJ; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76] per Hayne J, Kiefel J (as her Honour then was) and Bell J; and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [11] per Allsop CJ. Mere disagreement, even where understandably or emphatically felt, is not sufficient to demonstrate legal unreasonableness.
2. It is not apparent how unreasonableness (or illogicality) could be demonstrated in the present case. The IAA's decision in this case turned upon adverse credibility findings. Those findings were based upon various issues that the IAA identified in the evidence before it, including various inconsistencies in evidence that the applicant had given at various stages of the process. It has not been demonstrated that this reasoning was relevantly closed to the IAA. Nor is it apparent how such a finding could be made on the facts of this case.
3. At the hearing, the applicant suggested that the fact that he "sacrificed [his] life, took a risk and came to Australia" was the "biggest proof" that he was a refugee. I understand that the applicant may believe this and that he disagrees with the IAA's decision. However, as was explained at the hearing, disagreement, without more, is incapable of providing the Court with a basis for setting aside the IAA's decision. The IAA was clearly aware that the applicant had come to Australia, by boat. That was the reason that the matter was before the IAA. However, the IAA was not required to accept that, because of this, the applicant met the criteria for a protection visa. Although another decision maker may have reasoned differently, this does not provide sufficient basis to the Court for overturning the IAA's decision: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131] per Crennan and Bell JJ.
4. In submissions filed after the hearing before the Court, the applicant submitted that there was a statement from the Minister allowing him to change or add information after his 2013 interview. The applicant submitted that the Minister's assessment that he was inconsistent was therefore incorrect. It is not entirely clear what the applicant is referring to in this submission. The evidence before the Court indicates that the applicant was told during the 2013 interview that "if the information he provided at any future interview was different it could raise doubts about the reliability of what he had said": [19] of the IAA's decision.
5. Even if the applicant had been told that he would be able to add to or change what he had said later, this would not mean that it was relevantly closed to the IAA to have been concerned by certain changes in the applicant's evidence. In particular, the IAA was concerned that the applicant had said at his 2013 interview that he had come to Australia "to get a job" and that there were no other reasons (beyond family reasons and seeking a higher income). The IAA was also concerned by the employment history that the applicant had given in the interview, which was inconsistent with the applicant's protection claims. It was open to the IAA to consider that these issues undermined the credibility of the applicant's subsequent claims to face harm in Bangladesh. Even if the applicant was told that he could change his account later, this did not logically preclude a finding that his earlier evidence was inconsistent with his later claims.
6. In his written submissions, the applicant took issue with the rejection of his evidence in the form a media article and medical certificate. In relation to the media article, he submitted that it was the "best [he] could come up with", due to limited media access.
7. The IAA declined to place weight upon these documents in support of the applicant's claims at [15]-[16] of its decision. It also declined to place weight upon another document that had been purportedly provided by the applicant's uncle (at [17]). The reasons that the IAA gave for declining to place weight upon these documents centred around inconsistencies or incongruencies that it identified at [15]-[17] of its decision as between the documentary evidence and the other evidence that was before it. This was together with its reliance upon country information regarding the prevalence of document fraud in Bangladesh. These matters appear to have been, at least potentially, logically probative of the issue in question. It has not been demonstrated that this reasoning was unavailable to the IAA.
8. Having regard to the above, I am not persuaded that legal unreasonableness (or illogicality) has been demonstrated in relation to the IAA's decision.

1. Whilst not raised by the applicant, the Minister submitted that the IAA did not relevantly err in its application of s 473DD of the Act. I accept this.
2. As the Minister observed, there was a translation of a news article that was provided to the IAA. The IAA did not consider whether this translation was "new information". However, as was submitted by the Minister, ABJ17 v Minister for Immigration and Border Protection [2018] FCA 950; (2018) 260 FCR 295 (ABJ17) at [23] (Bromwich J) supports the IAA's apparent understanding that this was not "new information". Whilst there are other decisions that may be thought to cast doubt upon this - see AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407 at [48]- [55] (Allsop CJ) - I accept the Minister's submission that ABJ17 appears to be the applicable Federal Court authority by reference to the particular circumstances of this case (i.e. involving a translated document) and, therefore, ought to be followed. Any challenge to that position would need to take place in another (higher) forum.

Additional matters raised in the post-hearing submissions

1. The applicant's written submissions also sought to demonstrate that the decision to refuse him a protection visa was wrong. This was including by reference to what the applicant submitted had occurred after the IAA's decision. The applicant further suggested that it would be inhumane not to grant him a visa. This was circumstances where he had lived in Australia for a long period of time and had a family (including a very young daughter) affected by the outcome.
2. As I explained at the hearing of the matter, I am not unsympathetic to the applicant's situation. I do not doubt that this matter is of great importance to the applicant and his family. I do not doubt that the applicant's visa situation is causing him significant levels of stress.
3. However, the Court's role in this type of proceeding is limited to assessing whether or not the IAA's decision was affected by legally relevant error. It is not open to this Court to overturn the IAA's decision based upon compassionate circumstances. Nor is it open to the Court to decide whether or not the applicant's protection claims ought to be accepted. This Court has no power to grant the applicant a visa.

1. For the above reasons, the application before the Court must be dismissed.
2. I will hear from the parties in relation to costs.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.